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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Union Bank of India – Petitioner
Versus
M/s A.P. Automobiles – Respondent
Special Civil Application No. 4366 of 2020, Civil Application (For Joining Party) No. 1 of 2020, Special Civil Application No. 13144 of 2021
Decided On : 28-09-2021
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 14, (1), 13 - Code of Criminal Procedure, 1973 - Section 83, (3) and (4) - Transfer of Property Act, 1882 - Section 111 - Bank - Physical Possession Of Immovable Property - Whether application filed by petitioner- Bank falls within purview of Section 14 of SARFAESI Act or not - Whether notice under Section 13(2) of Act has already been given or not and whether secured asset is located within his jurisdiction - Whether property is movable or immovable - Whether CJM is competent to deal with request made by secured creditor under Section 14 of 2002 Act in same manner as can be done by CMM in metropolitan areas and DM in non-metropolitan areas.
Finding of the Court:
Section 14 of 2002 Act is not a provision dealing with jurisdiction of Court as such - It is a remedial measure available to secured creditor, who intends to take assistance of authorized officer for taking possession of secured asset in furtherance of enforcement of security furnished by borrower - Authorized officer essentially exercises administrative or executive functions, to provide assistance to secured creditor in terms of State’s coercive power to effectuate underlying legislative intent of speeding recovery of outstanding dues receivable by secured creditor - In view of above dictum of law Respondent No. 4-Collector and District Magistrate, Kheda, could not have rejected application of petitioner-Bank to provide assistance under Section 14 of SARFAESI Act to get physical possession of property in question - Therefore, impugned order passed by Respondent No. 4 is contrary to provisions and settled legal position and therefore same is hereby quashed and set aside - Petitioner-Bank is directed to file a fresh application before Respondent No. 4- Collector and District Magistrate, within period of two weeks from today to get assistance for purpose of taking over physical possession of property in question as provided under Section 14 of SARFAESI Act and Respondent No. 4 is directed to pass necessary order in accordance with law to provide assistance to petitioner-Bank by passing appropriate orders under Section 14 of SARFAESI Act within period of two weeks from date of receipt of such application.
Result: Application allowed
ORDER :
1. Heard, learned Advocate Mr. Devang Trivedi for the Petitioner-Bank in Special Civil Application No. 4366 of 2020 with Civil Application No. 1 of 2020 and learned Advocate Ms. Sangeeta Pahwa for the Auction Purchaser and the petitioner in Special Civil Application No. 13144 of 2021.
2. By preferring Special Civil Application No. 4366 of 2020, the petitioner Union Bank of India has prayed for the following reliefs:
(a) YOUR LORDSHIPS may be pleased to admit and allow the present petition.
(b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, order or direction in the nature of mandamus or issue any other appropriate writ order or direction by quashing and setting aside the impugned order dated 27.02.2019 passed by respondent no. 4 Collector and District Magistrate, Kheda-Nadiad in application filed under Section 14 of the SARFAESI Act being S.R. No. of 06/2018 Annexed at “Annexure C” in the interest of justice.
(c) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, order or direction in the nature of mandamus or issue any other appropriate writ order or direction by directing respondent no. 4 Collector and District Magistrate, Kheda-Nadiad to grant an application and provide assistance to take physical possession of the mortgaged security described in “Schedule A” of the application being Plot Block No. 1255, admeasuring 5160 square meters, Nr. Hotel Shalimar, NH-8, Village-Sandhana, Taluka-Matar, District-Kheda which is filed under Section 14 of the SARFAESI Act being S.R. No. of 06/2018 Annexed at “Annexure A” in the interest of justice.
(d) YOUR LORDSHIPS may also be pleased to direct Respondent No. 4 to arrange handing over physical possession of secured assets to the Petitioner within 30 days or within any other reasonable period as may be deemed fit and proper by YOUR LORDSHIPS.
(e)......”
3. The brief facts of the case are that the Petitioner-Bank through its authorized officer filed an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after, the ‘SARFAESI Act’) for taking physical possession of the immovable property of the mortgagee being Application No. 06 of 2018 before Respondent No. 4.
3.1 It is further the case of the petitioner-Bank that all particulars of the borrowers, i.e. Respondent Nos. 1 to 3, herein, was provided in the said application along with an affidavit, as per the provisions of Section 14 of the SARFAESI Act.
3.2 The petitioner-Bank also annexed list of documents along with the application including the deed of mortgage duly registered with the Sub-Registrar, Matar, of the property in question as well as the Index having mutation entry dated 4th May, 2009. It was also pointed out in the said application that the mortgage was created in favour of the petitioner-Bank by Respondent Nos. 1 to 3 while availing the financial assistance of Rs. 45,00,000/- (Forty Five Lakh only).
3.3 It is the case of the petitioner-Bank that it has sold the property in question to the auction purchaser, i.e. the petitioner of Special Civil Application No. 13144 of 2021, as per the registered Sale Deed dated 10th January, 2019 for Rs. 48,50,000/- (Forty Eight Lakh Fifty Thousand Only).
3.4 The sale deed was executed in favour of Fazal Anwarhusen of Zenith Inc. with regard to the property in question, which was mortgaged with the petitioner-Bank pursuant to the public auction of the property in question held on 13th December, 2010, as per the provisions of the SARFAESI Act. The petitioner of Special Civil Application No. 13144 of 2021 made an offer to purchase the property in question on “As is where is basis” for the price of Rs. 46,44,000/- (Forty Six Lakh Forty Four Thousand only) and on being a successful and highest bidder, the Auction Purchaser paid Rs. 48,50,000/- (Forty Eight Lakh Fifty Thousand)in the year 2011.
3.5 It appears that since then the auction purchaser is not handed over the physical po
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